OPINION OF THE JUSTICES TO THE GOVERNOR.

210 Mass. 609

January 11, 1912

" The power of pardoning offences," which by Const. Mass. c. 2, § 1, art. 8, with the exception there stated, is given to the Governor by and with the advice of
the Council, includes not only absolute release from the penalty imposed but
also commutation of sentence and respite of sentence.

Under Const. Mass. c. 2, § 1, art. 8, the power to grant an absolute pardon or to
commute a sentence can be exercised only by the concurrent action of the
Governor and the Council.

The provision of R. L. c. 220, § 39, that a sentence of death shall be executed
"within the week appointed by the court, unless the Governor pardons the
crime, commutes the punishment therefor or respites the execution," although
it makes no express reference to the Council, must be interpreted as referring
to the power of pardon, commutation and respite as given by the Constitution,
from which alone it can be derived. Otherwise the provision would he
unconstitutional.

ON January 11, 1912, a letter from the Governor, containing
the following questions, was transmitted to the Justices of the
Supreme Judicial Court. On January 12, 1912, the Justices
returned the answer which is subjoined.

The letter was as follows :
In relation to the death sentence imposed in the Phelps case,
I feel it incumbent upon me to ask the Supreme Court of Massachusetts
for a decision as to the responsibility of the Governor
in cases involving the capital sentence.

Article eight, Section one, Chapter two, of the Constitution
of Massachusetts, says that" the power of pardoning offences
... shall be in the governor, by and with the advice of
council."

From the existing statutes, I am unable to determine whether
the commutation of a sentence is of the nature of a conditional
pardon. I am also unable to determine whether in the event of
either a pardon or a commutation of sentence, the Governor is

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expected to obtain the consent as well as the advice of the
Council.

In our Massachusetts reports No. 190, the court states in relation
to the commutation of a sentence, as follows,-
"They all recognize the fact that the act, first of all, and
afterwards for all time, is to be the act of the Governor. The
only connection that the Council can have with it is advisory.
Whether the Governor takes advice or not, his conclusion must
rest finally upon his own judgment. Inasmuch as the responsibility
for his determination, with or without advice, must rest
upon him, both in the beginning and forever after, the natural
course of proceeding would seem to be that he should seek
such aid as he might desire from any proper source, and not
be obliged to ask advice, in the first instance, from an official
body whose opinion could never relieve him from the duty
of deciding."

In view of these uncertainties, it appears to be my duty
to ask the Supreme Court also whether the Governor himself
has the right to commute a sentence, as from death to life
imprisonment.

While the pending sentence of death in the Phelps case
brings this matter to my earnest attention, my wish is, irrespective
of any action which might result in this instance, to find
out exactly what obligation rests upon the Governor under our
Constitution and statutes in such instances.

To his Excellency

Eugene N. Foss,

Governor of the Commonwealth of Massachnsetts :

The Justices of the Supreme Judicial Court, in reply to the
questions presented to them, respectfully submit the following
answers:

The power, duty and responsibility of the Governor respecting
pardons is found in the Constitution of the Commonwealth.
Article VIII, Section I, Chapter II of Part the Second provides
that "The power of pardoning offences, except such as persons
may be convicted of before the senate by an impeachment of the
house, shall be in the governor, by and with the advice of council."
The words "The power of pardoning offences" are

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comprehensive. They include not only that absolute release
from the penalty which is referred to commonly as a pardon,
but those lesser exercises of clemency which are described as
conditional pardon, commutation of sentence and respite of
sentence. The only authority for the executive department of
the government to mitigate or release from sentence for crime is
this language of the Constitution. The Governor is clothed
with authority to act in that respect only " by and with the
advice of council." The unmistakable meaning of these words
is that he can act only in conformity to the advice of the
Council. He may decline to take action although the Council
advise him to do so. Responsibility for granting a pardon rests
upon the Governor and he cannot be compelled to take such
action by the Council. The language quoted in your letter
from the Opinion of the Justices, 190 Mass. 616, 619, 620, has
reference to this aspect of the duty of the Governor. Equal
responsibility rests upon the Council. The granting of a full or
a partial pardon is the result of concurrent action by both the
Governor and the Council. Neither alone can take effective
action. Both must agree before the Constitution is satisfied.

The Governor is not required to ask the advice of the Council
in forming his opinion. He may refuse to pardon without first
referring the matter to the Council. But if he desires to grant
a pardon, he must take the advice of the Council before undertaking
to act. This is pointed out clearly in the Opinion of the
Justices, 190 Mass. 616, 619, in these words: "The provision for
advice of the Council is a requirement that their approval and
concurrence shall accompany the affirmative act and enter into
it before it becomes complete and effective." The power to
pardon as vested in the Governor is not absolute but conditional,
and that condition is that it shall be exercised in accordance
with the advice of the Council. Such is the plain reading
of the Constitution; and so far as we know this always has been
the practice.

The same principle applies whether the act be a complete or
a modified pardon. A commutation of sentence, which is the
substitution of a lighter for a more severe punishment, is an
exercise of the pardoning power and must be in accordance with
the Constitution. It is an act of the Governor which becomes

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effective only when concurred in by the Council. See Opinion
of the Justices, 14 Mass. 472.

Although no express reference is made to the Council in R. L.
c. 220, § 39, which relates to the commutation of sentences, the
statute must be read as subject to the provisions of the Constitution.
Otherwise the statute would be unconstitutional. It
cannot be assumed that the Legislature intended to confer upon
the Governor a power which would be beyond its constitutional
authority. The power of commutation of sentence, conditional
pardon and respite of sentence referred to in this and other
sections of the statute is not created by the statute but is
derived wholly from the Constitution. The only right of the
Legislature is to enact laws to render the exercise of the constitutional
power efficient and convenient. Kennedy's case, 135 Mass. 48.